2013-M-254             State of Minnesota, Respondent, vs. Jose Miguel Chavarria-Cruz, Appellant.

MAJORITY:  A grand jury indicted appellant Jose Miguel Chavarria-Cruz with first-degree premeditated murder for the benefit of a gang arising out of the shooting death of Carlos Hernandez Perez.  Following a jury trial, Chavarria-Cruz was found not guilty of the first-degree murder offense but guilty of the lesser-included offense of second-degree intentional murder for the benefit of a gang.  The district court convicted Chavarria-Cruz on the second-degree murder offense and imposed a 350-month sentence. 

On appeal, we held that Chavarria-Cruz’s right to counsel was violated, vacated the second-degree murder conviction, and remanded for a new trial. 

On remand, a second grand jury indicted Chavarria-Cruz with first-degree felony murder for the benefit of a gang and second-degree intentional murder for the benefit of a gang.  Chavarria-Cruz filed a pretrial motion to dismiss the felony murder charge, arguing that the charge violated the constitutional and statutory prohibitions against double jeopardy because he had been acquitted of the first-degree premeditated murder charge. 

The district court denied the motion.  Following a second jury trial, Chavarria-Cruz was found guilty of first-degree felony murder for the benefit of a gang and second-degree intentional murder for the

benefit of a gang.  The court convicted Chavarria-Cruz on the second-degree murder offense and imposed a 350-month sentence. 

After the court of appeals affirmed, we granted review on two issues.  First, whether the State presented sufficient evidence to support the conviction of second-degree intentional murder for the benefit of a gang.  Second, whether the district court erred when it denied the pretrial motion to dismiss the felony murder charge.

 Based on our review of the record, we affirm the conviction of second-degree intentional murder for the benefit of a gang.  However, because the district court failed to properly analyze the double jeopardy issue, we reverse the district court’s denial of Chavarria-Cruz’s pretrial motion to dismiss.

Our conclusion that the district court erred in denying the pretrial motion to dismiss the felony murder charge does not end our analysis; rather, we must next consider whether the error warrants a new trial in this case.

Applying the Mathews rule to the facts of this case, we conclude that there is no reasonable probability that Chavarria-Cruz would have been acquitted of the nonjeopardy-barred charge of second-degree intentional murder for the benefit of a gang in the absence of the jeopardy-barred charge of first-degree felony murder for the benefit of a gang.  A new trial is therefore not warranted in this case.  

HELD:  1.  The State presented sufficient evidence to support appellant’s conviction of second-degree intentional murder. 

2. Although the district court failed to properly analyze the double jeopardy issue when it denied appellant’s pretrial motion to dismiss the felony murder charge, the error does not warrant a new trial.

Affirmed

CONCUR & DISSENT:  Justice Page opined: “I concur in part and dissent in part.  I agree with the court that Chavarria-Cruz is not entitled to a new trial.  I disagree, however, with the way the court gets to its result.  Under our jurisprudence, the court should have addressed Chavarria-Cruz’s claims under Minn. Stat. § 609.04 (2012) and Minn. Stat. § 609.035 (2012), in addition to his double jeopardy claim.  Moreover, the double jeopardy claim deserves more than the cursory treatment given it by the court.  Finally, Chavarria-Cruz is entitled to have the firstdegree felony murder verdict and conviction vacated.

Barry Anderson (Gildea, Dietzen, Stras, and Wright)

Concur & Dissent:  Page

Took no part   Lillehaug

[MURDER]

A11-1181,